Loading ...
Silly copyright lawsuit
Get to know me and you’ll find out that I’m a rather outspoken opponent of “tort reform.” It’s a stand that puts me in the minority among conservatives, but that’s just the way it is. But my stand on that issue does not mean that I somehow do not know frivilous lawsuits when I see them.
One such lawsuit came to my attention this morning. Greg Aharonian is suing the federal government in order to invalidate the use of copyright law to protect the intellectual property of software makers.
Reuters quotes Mr. Aharonian as saying, “Until you’re sued and a judge makes up his mind about what is the idea and expression (at stake), no one knows.” Based upon this claim, Mr. Aharonian is claiming that the use of copyright protection statutes violate the Constitutional standard of due process because litigants cannot know the rules concerning fair use beforehand.
It’s a novel argument, and in another context it might even be persuasive. However, this lawsuit is on its way out of court. There just is not a judicable complaint here. Mr. Aharonian is not countersuing a software maker for attempting to stiffle his ability to fairly use software or source code, he’s suing the federal government. He’s asking a judge for a declaratory judgment that software makers cannot seek relief in copyright law and by extension tell the federal government not to recognize copyright protections for software makers.
This is an attempt, really, by Mr. Aharonian to seek an advisory opinion from the court. He’s going to court and asking a federal judge to decide whether software is copyrightable, even though there is no otherwise judicable question at issue.
As the Judge Colleen Kollar-Kotelly wrote back in 1998:
…It is well settled that Article III of the United States Constitution limits this Court’s exercise of judicial power to “cases” and “controversies.” U.S. Const. art. III, Sec. 2; Flast v. Cohen, 392 U.S. 83, 94-95 (1968). “Justiciability is the term of art employed to give expression to the limitation placed upon federal courts by the case-and-controversy doctrine.” Id. at 95. “It is quite clear that ‘the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.’” Id. at 96 (quoting C. Wright, Federal Courts 34 (1963)).
It is the absence of genuine controversy that is missing here. Mr. Aharonian is merely dissatisfied with the current state of copyright and patent law and the level of protection that he is personally offered under it. In order to increase his feeling of protection, he’s seeking a federal court to give him a “get out of trouble free” card. Note from the Reuters’ story:
Aharonian said in his complaint he does not know if he personally has run afoul of copyright laws because he has set up a database of thousands of computer programs to help software companies figure out if their products infringe on existing material.
If the owner of any of those programs decides to sue, he could face hundreds of thousands of dollars in penalties and possible jail time.
If Mr. Aharonian is dissatisfied with the current state of the law then he should go to Congress and seek to have the law changed. Asking a federal judge for an advisory opinion when it is well settled that this is not permissible is the very definition of a frivilous lawsuit.
MickC @ December 14, 2004